Citation Nr: 0513462
Decision Date: 05/18/05 Archive Date: 06/01/05
DOCKET NO. 03-16 585 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for bilateral tinnitus.
3. Entitlement to a rating higher than 40 percent for
postoperative residuals of a right shoulder fracture.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had active service from July 1953 to July 1956.
This case comes to the Board of Veterans' Appeals (Board)
from a December 2002 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Hartford, Connecticut.
That decision denied claims for service connection for
bilateral hearing loss and tinnitus. It also assigned a
temporary 100 percent convalescent rating for the right
shoulder disability (see 38 C.F.R. § 4.30); a 30 percent
rating resumed upon termination of that total rating.
A subsequent, May 2003, RO decision granted service
connection for a tender postoperative scar over the lateral
deltoid area of the right shoulder and for a tender
postoperative scar over the anterior deltoid area of the
right shoulder. Each scar received a 10 percent rating. The
RO also increased, from 30 to 40 percent, the rating for the
underlying right shoulder disability effective August 30,
2002, the date of receipt of the claim for a higher rating.
The veteran since has continued to appeal, requesting an even
higher rating. See AB v. Brown, 6 Vet. App. 35, 39 (1993).
The veteran stated in his Notice of Disagreement (NOD) that a
physician had told him that his current bilateral carpal
tunnel syndrome (CTS) and residuals of bilateral ulnar nerve
surgery were due to his service-connected right shoulder
disability and nonservice-connected neck problem. It is
unclear whether he is claiming service connection for these
additional conditions, including on a secondary basis.
38 C.F.R. § 3.310(a) (2004); Allen v. Brown, 7 Vet. App. 439
(1995). So the RO should clarify whether he is. And if he
is, the RO should development and adjudicate these additional
claims. The Board does not currently have jurisdiction to
consider them. 38 C.F.R. § 20.2000 (2004).
Unfortunately, even the claims currently on appeal - for
service connection for bilateral hearing loss and tinnitus,
must be further developed. So they are being REMANDED to the
RO via the Appeals Management Center (AMC) in Washington, DC.
VA will notify the veteran if further action is required on
his part concerning these claims. The Board, however, will
decide his claim for a higher rating for his right shoulder
disability.
FINDINGS OF FACT
1. The veteran is right handed for rating purposes.
2. The veteran does not have ankylosis of the right
shoulder, loss of the humeral head, or nonunion or fibrous
union of the humerus.
CONCLUSION OF LAW
The criteria are not met for a rating higher than 40 percent
for the postoperative residuals of the right shoulder
fracture. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002);
38 C.F.R. §§ 3.321(b)(1), 4.2, 4.7, 4.10, 4.21, 4.69,
Diagnostic Code 5201 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002) became effective on November 9,
2000. Implementing regulations are codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA provides that VA will assist a claimant in obtaining
evidence necessary to substantiate a claim, but is not
required to provide assistance if there is no reasonable
possibility that it would aid in substantiating the claim.
Charles v. Principi, 16 Vet. App. 370, 373-74 (2002);
Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).
Recently, the United States Court of Appeals for Veterans
Claims (Court) addressed both the timing and content of the
VCAA notice requirements imposed upon VA by the VCAA. See
Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004)
(Pelegrini II) (withdrawing it's decision in Pelegrini v.
Principi, 17 Vet. App. 412 (2004) (Pelegrini I)). In
VAOPGCPREC 7-2004 (July 16, 2004) it was determined that the
"holdings" in Pelegrini II were not necessary to the
disposition of the case and implied that the Court's
statements constituted dicta rather than binding holdings.
Id. (citing dissenting opinion in Pelegrini II and other
cases characterizing Court statements as dicta).
Here, however, even if the Pelegrini II Court's statements
were binding holdings, the RO nonetheless complied with them.
The Court in Pelegrini II held that a VCAA notice must be
provided to a claimant before the initial unfavorable agency
of original jurisdiction (AOJ) decision on a claim for VA
benefits. Pelegrini II, at 115.
In this case, the appellant was provided the required VCAA
notice in a November 2002 letter, so prior to the RO's denial
of his claim in December 2002. This, therefore, was in
accordance with the holding in Pelegrini II insofar as the
mandated sequence of events (i.e., VCAA notice before initial
adjudication).
The Court in Pelegrini II also held that VCAA notice must:
(1) inform the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) inform the claimant about the information and evidence
that VA will seek to provide; (3) inform the claimant about
the information and evidence the claimant is expected to
provide; and (4) request or tell the claimant to provide any
evidence in his or her possession that pertains to the claim.
Pelegrini II, at 120-21. This new "fourth element" is
required under 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b)(1). Id.
According to VAOGCPREC 7-2004, the Pelegrini II holding does
not require that VCAA notification contain any specific
"magic words," and that it can be satisfied by a Statement
of the Case (SOC) or Supplemental SOC (SSOC) as long as the
documents meet the four content requirements listed above.
See also Valiao v. Principi, 17 Vet. App. 229, 332 (2003)
(implicitly holding that RO decisions and SOC may satisfy
this requirement).
The "fourth element" language in Pelegrini I is
substantially identical to that of Pelegrini II. VAOPGCPREC
1-04 (Feb. 24, 2004) held that this language was obiter
dictum and not binding on VA, see also Pelegrini II, at 130
(Ivers, J., dissenting), and that VA may make a determination
as to whether the absence of such a generalized request, as
outlined under § 3.159(b)(1), is prejudicial to the claimant.
For example, where the claimant is asked to provide any
evidence that would substantiate his or her claim, a more
generalized request in many cases would be superfluous. Id.
The Board is bound by the precedent opinions of VA's General
Counsel (GC), as chief legal officer of the Department.
38 U.S.C.A. § 7104(c).
Here, although the November 2002 VCAA notice letter does not
contain the precise language specified in 38 C.F.R.
§ 3.159(b)(1), the Board finds that the appellant was
otherwise fully notified of the need to give VA any evidence
pertaining to the claim for an increase rating.
The VCAA letter requested that the appellant provide or
identify any evidence supporting this claim and specifically
outlined the necessary evidence. So a more generalized
request with the precise language outlined in § 3.159(b)(1)
would be redundant. The absence of such a request is
unlikely to prejudice the appellant, and thus, the Board
finds this to be harmless error. VAOPGCPREC 1-04
(Feb. 24, 2004).
Also, the other three content requirements of the VCAA notice
in Pelegrini II have been satisfied.
The veteran's service medical records (SMRs) are on file, as
are his private and VA clinical records. He has been
afforded a VA examination to determine the severity of the
service-connected right shoulder disability at issue. He
declined his opportunity to testify at a hearing in support
of his claim, and the more recent statements and
correspondence from him do not make reference to or otherwise
mention any additional treatment from other sources (e.g.,
private or non-VA, etc.).
Accordingly, no further development is required to comply
with the VCAA or the implementing regulations. And the Board
deciding the appeal at this juncture does not prejudice the
veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
General Rating Considerations
Ratings for service-connected disabilities are determined by
comparing current symptoms with criteria set forth in VA's
Schedule for Rating Disabilities - which is based as far as
practical on average impairment in earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic
codes identify the various disabilities. When a question
arises as to which of two ratings apply under a particular
diagnostic code, the higher evaluation is assigned if the
disability more closely approximates the criteria for the
higher rating; otherwise, the lower rating will be assigned.
38 C.F.R. § 4.7. After careful consideration of the
evidence,
any reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3. Also, when making determinations
as to the appropriate rating to be assigned, VA must take
into account the veteran's entire medical history and
circumstances. See 38 C.F.R. § 4.1; Schafrath v. Derwinski,
1 Vet. App. 589, 592 (1995). But the most current level of
functional impairment due to the service-connected disability
is of primary importance. Francisco v. Brown, 7 Vet.
App. 55, 58 (1994).
The most recent examination, however, is not necessarily and
always controlling; rather, consideration is given not only
to the evidence as a whole but to both the recency and
adequacy of examinations. Powell v. West, 13 Vet. App. 31,
35 (1999).
When, after considering all information and lay and medical
evidence of record, there is an approximate balance of
positive and negative evidence as to any material issue, VA
shall give the claimant the benefit of the doubt.
38 U.S.C.A. § 5107(b) (West 2002). See also Dela Cruz v.
Principi, 15 Vet. App. 143, 148-49 (2001) ("the VCAA simply
restated what existed in section 5107 regarding the
benefit-of-the-doubt doctrine").
"Handedness for the purpose of a dominant rating will be
determined by the evidence of record, or by testing on VA
examination. Only one hand shall be considered dominant.
The injured hand, or the most severely injured hand, of an
ambidextrous individual will be considered the dominant hand
for rating purposes." 38 C.F.R. § 4.69 (2004).
Under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201,
limitation of an arm to 25 degrees from the side warrants a
maximum 40 percent evaluation for the major extremity and 30
percent for the minor extremity.
Under 38 C.F.R. § 4.71a, DC 5200, ankylosis of the
scapulohumeral articulation (which move as one piece) when in
an intermediate position between favorable and unfavorable
warrants a 40 percent evaluation when the major extremity is
affected and 30 percent when the minor extremity is affected.
When in an unfavorable position, with abduction limited to 25
degrees from the side, a 50 percent evaluation is warranted
when the major extremity is affected and 40 percent when the
minor extremity is affected.
Under 38 C.F.R. § 4.71a, DC 5202, a 50 percent evaluation is
warranted for the major extremity and 40 percent for the
minor extremity, when there is fibrous union of the humerus.
A 60 percent evaluation is warranted for the major extremity
and 50 percent for the minor extremity when there is nonunion
of the humerus (false flail joint). An 80 percent evaluation
is warranted for the major extremity and 70 percent for the
minor extremity when there is loss of the humeral head
(flail shoulder).
Here, there is some question as to whether the veteran is
right or left-handed. On VA general medical evaluation in
1956 the examiner wrote that the veteran was left handed, for
the purpose of writing. But during another VA examination in
1957 it was reported that he was right handed, but was
attempting to become ambidextrous. And on VA examination in
December 1980 it was reported that he had been right handed
until 1966, but that since then he had used his left hand
more often and now he thought that he was more left handed
than right handed.
The RO assigned the maximum schedular rating of 40 percent
under DC 5201. This maximum possible rating under this code
necessarily presumes the veteran is right handed because, if
he was not, the highest possible rating he could receive for
his service-connected right shoulder (if the minor extremity)
would be 30 percent. So, by logical deduction, the RO has
evaluated him on the basis of being right handed. And given
the evidence cited above, this was a reasonable determination
by the RO. The Board therefore shall make the same
assumption as well.
In order to warrant a higher schedular rating, the veteran
must have either ankylosis under DC 5200 or the required
impairment of the humerus under DC 5202. The report of the
recent VA rating examination in December 2002 shows the
veteran had active range of motion in abduction and flexion
and had passive extension of the right shoulder.
Ankylosis, by definition, is immobility and consolidation of
a joint due to disease, injury or surgical procedure. Nix v.
Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8
Vet. App. 218, 221 (1995). Ankylosis is stiffening or
fixation of a joint as the result of a disease process, with
fibrous or bony union across the joint. Dinsay v. Brown, 9
Vet. App. 79, 81 (1996).
Since, then, the veteran still has some quantifiable range of
motion in his right shoulder, he obviously does not have the
ankylosis required for a rating in excess of 40 percent under
DC 5200.
The only other DC providing for a rating in excess of 40
percent is DC 5202, which requires either loss of the humeral
head (flail shoulder), nonunion of the humerus (false flail
joint), or fibrous union of the humerus. X-rays during the
VA examination in December 2002, however, did not reveal any
of these clinical findings, although degenerative changes of
the glenohumeral joint with narrowing of the inferior joint
space and a suspected small spur formation at the inferior
aspect of the glenoid were found. Furthermore, the acromion
had a normal appearance and the acromioclavicular joint was
well maintained and there was no evidence of soft tissue
calcification.
The Board is aware the veteran had exploratory right shoulder
surgery at a VA Medical Center in 1966, with plication of the
suprasupinatus tendon, and additional VA surgery in 1980 with
resection of the coracoacromial ligament. Nevertheless, the
fact remains he does not have the required objective clinical
findings under the rating schedule to warrant a rating higher
than 40 percent. As mentioned, he already received a
temporary 100 percent convalescent rating following the
surgery in 1980. So he already has been compensated at the
highest possible level for that. And he has separate 10
percent ratings for his right shoulder scars, too.
Extraschedular Evaluation
The veteran is not shown to warrant consideration for an
extra-schedular rating for the service-connected right
shoulder disorder at issue under the provisions of 38 C.F.R.
§ 3.321(b)(1). He has not been frequently hospitalized on
account of it in recent years. The disorder also has not
caused marked interference with his employment, i.e., beyond
that contemplated by his assigned rating, or otherwise
rendered impractical the application of the regular schedular
standards.
Records show the veteran reinjured the shoulder in 1991 at
his civilian job, according to the report of an evaluation by
Dr. Fisher. But even Dr. Fisher stated the veteran had only
30 percent permanent partial disability of the right
shoulder, with only 5 percent of that being attributable to
the on-the-job injury. Admittedly, his overall functional
impairment may hamper his performance in some respects, but
certainly not to the level that would require extra-schedular
consideration since those provisions are reserved for very
special cases of impairment that simply is not shown here.
Consequently, the Board does not have to remand this case to
the RO for further consideration of this issue. See Bagwell
v. Brown, 9 Vet. App. 337,
338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996);
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
Since, for these reasons, the preponderance of the evidence
is against the claim, the benefit-of-the-doubt doctrine does
not apply. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
ORDER
The claim for a rating higher than 40 percent for the
postoperative residuals of the right shoulder fracture is
denied.
REMAND
The veteran contends that he now has bilateral tinnitus and
bilateral hearing loss as a result of exposure to acoustic
trauma while in the military from having to fire small arms
on a testing range as part of his duties repairing small
arms.
The veteran's hearing of the whispered voice was 15/15 at
service entrance, and his hearing of the whispered and spoken
voice was 15/15 at service discharge. This indicates he had
completely normal hearing acuity. And his SMRs are otherwise
negative for objective evidence or indications of hearing
loss and tinnitus.
The earliest clinical evidence of hearing loss is when the
veteran was evaluated by VA in 1980, at which time it was
reported that he did not have tinnitus. He had a history of
ordance testing.
38 C.F.R. § 3.385 (2004) provides that:
For the purposes of applying the laws
administered by VA, impaired hearing will be
considered to be a disability when the auditory
threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater;
or when the auditory thresholds for at least
three of the frequencies 500, 1000, 2000, 3000,
or 4000 Hertz are 26 decibels or greater; or when
speech recognition scores using the Maryland CNC
Test are less than 94 percent.
VA audiometric testing in 1980, and again in December 2002
(when the veteran first complained of occasional tinnitus),
revealed he had a bilateral hearing loss under the standards
set forth at 38 C.F.R. § 3.385. At the time of the 2002
VA examination, it was noted that he attributed his hearing
loss and occasional tinnitus to noise exposure from testing
small arms fire during service. It was noted that, at the
time of that examination, he did not have tinnitus. The
diagnoses were bilateral sensorineural hearing loss and
occasional bilateral tinnitus.
In his NOD, the veteran minimized his exposure to acoustic
trauma in his civilian, post-service employment, even
submitting a resume of his post-service employment. But by
his own admission he was exposed to some acoustic trauma
after military service.
So a medical opinion is needed to determine the etiology of
the veteran's hearing loss. A similar opinion also is needed
indicating whether he currently has tinnitus and, if so, the
cause of it. Charles v. Principi, 16 Vet. App. at 374-375
(citing 38 U.S.C. §§ 5103A(d)(2)(B), 5103A(d)(2) (West 2002)
and 38 C.F.R. § 3.159(c)(4) (2004)).
Accordingly, these claims are remanded to the RO for the
following development and consideration:
1. Schedule the veteran for VA audiometric
testing to determine whether he presently has a
bilateral hearing loss according to VA standards
listed at 38 C.F.R. § 3.385. If he does, is it
at least as likely as not (meaning 50 percent or
greater probability) that his current hearing
loss is due to acoustic trauma sustained during
service? Please also indicate whether he
presently experiences tinnitus and, if so, is it
at least as likely as not the result of
acoustic trauma sustained during service?
If no opinion can be rendered responding to these
questions, please explain why this is not
possible.
It is absolutely imperative that the examiner has
access to and reviews the claims folder for the
veteran's pertinent medical history. All
necessary testing should be done and the examiner
should review the results of any testing prior to
completion of the examination report. If an
examination form is used to guide the
examination, the submitted examination report
should include the questions to which answers are
provided.
2. Review the report of the examination to
ensure it contains responses to the questions
posed. If not, take corrective action.
38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App.
268 (1998).
3. Then readjudicate the claims for service
connection for bilateral hearing loss and
bilateral tinnitus in light of the additional
evidence obtained.
4. If after readjudication the claims remain
denied, prepare a supplemental statement of the
case (SSOC) and send it to the veteran and his
representative. Give them time to submit
additional medical or other evidence in response.
Thereafter, subject to current appellate procedures, the
claims should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. No inference
should be drawn regarding the final disposition of the claims
as a result of this action.
The veteran has the right to submit additional evidence and
argument concerning the claims the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
The claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at
38 U.S.C. §§ 5109B, 7112).
______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs